Sadly, Missourians today rarely enjoy the same freedom. Long ago, a significant part of the population decided that a person’s freedoms end where they create a critical mass of irritation among their neighbors. Now, even when people hold documents saying they own their property, local governments have crafted an imposing array of laws to tell them how they may and may not use it. Ordinances restrict how land may be used, how tall or how large buildings may be, what they must look like, and how many people or families may live in them. Where owners once had flexibility to change the use of their properties to realize their greatest advantage, they now must gain the approval of others whose interests might be directly contrary to those of the individual property owner.

A case in point is the story of Brad Ferguson, who would like to develop his land on the outskirts of Washington. He believes that people would be interested in owning homes that he would like to build on his land by Holtgrewe Road, so he has been trying to jump through the necessary hoops to profitably develop his property. For the first century of Missouri’s statehood, Mr. Ferguson would not have been required to ask anyone before building homes and offering them for sale to willing buyers. Even in this past year, he had a glimmer of an opportunity, thanks to the controversial “village” law that should have allowed him to pursue his dream. But the fear of inconvenience has led Mr. Ferguson’s neighbors and elected officials to severely limit his individual liberty and to prevent his constitutionally guaranteed right to “enjoy the gains of [his] own industry” by realizing the potential value of his property.

The founders of our nation spoke about circumstances in which the desire of a majority conflicted with the freedoms of the individual. James Madison, well aware that the tendency of governmental power would be to legislate majority preferences to the detriment of those outside the mainstream, cautioned that government must be obliged to control itself. He noted that where a majority was willing to restrict the liberties of some, they necessarily compromised freedom for all within that society.

These same principles once guided the Missouri Supreme Court as well. More than a century ago, the Court held that when a government subjects the property of its citizens to the unlimited control of “even the most democratic depository of power,” it would still be a despotism. The justices further stated that communities were and ought to be powerless to deny individuals the right to use their property as they saw fit, so long as that use did not threaten the health, safety, or welfare of the community. Because the state constitution protected citizens’ liberty and property, cities were not permitted to limit the height, location, or use of buildings on their property unless the government demonstrated that a particular use of property would threaten the neighborhood’s health or safety.

While courts in Missouri and across the nation have in recent years neglected such a simple freedom as the harmless development of one’s own property, this sort of liberty is no less essential today than it was when courts were more zealous in its protection. We, as citizens, should all cultivate respect for the importance of this sort of freedom, and we should remember that our own liberties necessarily depend on our willingness to secure the freedoms of others, like Mr. Ferguson.

Dave Roland is a policy analyst with the Show-Me Institute, a Missouri-based think tank.

Policymakers need evidence about the relationship between judicial selection and legal system quality. Our recent Show-Me Institute study analyzed how judicial selection methods affect the quality of state legal systems. We looked at seven general methods used across states: (1) nonpartisan elections; (2) partisan elections; (3) legislative elections; (4) gubernatorial appointment with a nominating commission; (5) gubernatorial appointment with a nominating commission and legislative confirmation; (6) gubernatorial appointment with legislative confirmation only; (7) gubernatorial appointment with approval by an executive council.

To measure legal system quality, we used a study of state legal systems by the Institute for Legal Reform. Based on a survey of corporate lawyers, this study admittedly has a bias in that it attempts to gauge how the state legal systems are viewed by large public corporations. But this bias is also one of its advantages. Most legal reforms are enacted to promote economic growth and development, and it is precisely the perception of the state’s legal climate toward business that is being measured by this index. The study scores each state on a scale from zero to 100, with higher scores representing higher levels of legal quality. For each of the seven methods of judicial selection we calculated the average index score of each group from 2002–07.

We find that two methods of judicial selection tied for the highest average index scores during this period: gubernatorial appointment from a nominating commission both with and without legislative confirmation (both averaged a score of 65.3). Gubernatorial appointment with legislative confirmation came in third (65.0), followed by election by legislature (63.8), nonpartisan elections (61.2), and gubernatorial appointment with council approval (60.7). States using partisan elections handily received the worst average index score for judicial system quality during the period (53.4).

Based on conventional techniques for measuring statistical significance, we find that Missouri’s current method of judicial selection is statistically superior to judicial elections (either partisan or nonpartisan) and also to gubernatorial appointment with council approval alone. Based on our analysis, we conclude that Missouri could well err by moving to one of these three other methods.

We find that no other method of judicial selection results in average scores or rankings that are statistically better than Missouri’s current system. Thus, we cannot say that a switch to another type of system would result in an improved legal system. Election by legislature, gubernatorial appointment from a nominating commission with legislative confirmation, and gubernatorial appointment with legislative confirmation alone produce, on average, legal scores and rankings statistically equal to Missouri’s current system.

Thus, our findings suggest that Missouri would at least be no worse off if it wanted to experiment with selecting judges by either: (a) election by the legislature; (b) adding legislative confirmation to the existing appointment process; or, (c) gubernatorial appointment with legislative confirmation, but without a nominating commission. We note, however, that for all three of these alternative methods, there are states using them that both score both better and worse than Missouri. Based on our analysis, Missouri’s current system appears to be far superior in promoting economic growth than some of the alternatives — most notably judicial elections.

Joshua Hall is an assistant professor of economics at Beloit College, and Russell Sobel is professor of economics and James Clark Coffman Distinguished Chair at West Virginia University. Read their full study of judicial selection systems.